Dissenting Opinion by
Judge Wilkinson :I must respectfully dissent. Section 319 of the Workmen’s Compensation Act, quoted by the majority, plainly provides:
“. . . ; reasonable attorney’s fees and other proper disbursements incurred in obtaining a recovery or in effecting a compromise settlement shall be prorated between the employer and employe, his personal representative, his estate or his dependents. . . .”
The term “reasonable attorney’s fees” does not relate only to the percentage of a contingent fee, i.e., whether it is 33%, or 40%, or 73%. It relates also to the basis on which the fee is computed.
As applied by the majority in this case, the attorney for the employee is paid 40% of $37,219.00 as due from the employee, and 33% of $7,702.51, being part of the $37,219.00 for which the attorney has already been paid 40%. The percentages need not be discussed, for my position is the same regardless of moderate or excessive percentages involved. In my opinion, it is a clear abuse of *9discretion for the Appeal Board to approve as reasonable an arrangement by which the employee’s attorney is paid twice for the same work. Indeed, under no circumstances could this be categorized as following the mandate of the law to prorate the reasonable attorney’s fees — prorating certainly presupposes one fee for one job, not two.
The Workmen’s Compensation Appeal Board, in its opinion, candidly states:
“The fee and costs are paid, and were, in effect, paid by claimant, because his counsel deducted these amounts before turning over any funds to claimant.... Counsel for claimant, therefore, received a counsel fee of 40% of said amount ($7,702.51) from claimant, and a counsel fee of 33% of said amount from the carrier, or a total counsel fee of 73 % of said amount. This cannot be condoned. In effect, counsel for claimant was also in this particular venture representing also the carrier. We have no power to direct counsel for claimant to repay the 33 % to the carrier, but we can direct the employer (carrier) to reimburse claimant for the fee and costs attributable to the payment of $7,702.51.”
Certainly the Appeal Board and the majority of this Court are not only condoning it, but they are ordering the employer (carrier) to reimburse the employee for funds withheld by employee’s attorney. If the attorney for the employee has improperly withheld funds he received on behalf of the employee, there certainly are avenues available to the employee for requiring the attorney to account for the funds. If the funds were properly withheld, then the fee arrangement made between employee with his attorney for duplicate fees was unreasonable and not recoverable under the Act.
I would modify the order of the Workmen’s Compensation Appeal Board so as not to require the employer to repay the $3,081.00 withheld by the employee’s attorney as a duplicate fee.
Judge Kramer joins in this dissent.